By Michael Homans
Two recent cases involving deaf persons highlight the risks – and limits — of claims of disability discrimination by those with hearing impairments.
In the first, the U.S. Equal Employment Opportunity Commission (EEOC) sued McLane Northeast, a distribution company with a large facility near Syracuse, NY, on behalf of a deaf applicant.
The applicant was qualified for two entry-level warehouse jobs, but rejected by the employer which also refused to even interview her when it found out she was deaf. This discriminatory action and failure to consider accommodating her violated the Americans with Disabilities Act, according to last week’s verdict by a federal jury, which awarded her $1.675 million, including $1.5 million in punitive damages.
We’ve said it before and we’ll say it again: the key to handling disability cases is to go step by step through the accommodation process, engaging in a good-faith interactive process with the employee or applicant including – as needed – their healthcare provider. McLane Northeast apparently did not do that, and as a result it got a loud and clear wakeup call.
In the second case, SkyWest Airlines won summary judgment against a deaf ramp agent who claimed disability discrimination after the airline showed its repeated efforts to accommodate the employee and that the employee posed a “direct threat” to the safety of others. In Zimmerman v. SkyWest, the employee was hired into a position as a ramp agent on the airport tarmac, and self-identified as needing closed captioning for computer-based training as an accommodation for his deafness. Upon further inquiry, including a request to the employee’s medical provider, SkyWest learned that the employee could communicate on the tarmac only through lip-reading of those within line of sight. SkyWest reasonably determined that limitation posed a “direct threat” of harm to others, as employees working on the fast-moving tarmac often do not have line of sight with others. To support its defense, SkyWest noted a recent near-miss in which an employee on the tarmac was almost run over because of the inability to communicate with the employee.
SkyWest offered the employee two gate positions as an accommodation, but he refused. Based on these facts, a federal judge in North Dakota found multiple grounds for granting summary judgment to the employee.
Michael Homans is an employment lawyer and litigator based in Philadelphia and Wayne, Pennsylvania. He can be reached at mhomans@homanspeck.com or (215) 419-7477.